The
Northwestern Law Review has just published a festschrift on his work, celebrating
forty years on our faculty. It includes
contributions by James Pfander, Richard Freer, Richard Marcus, Linda Mullenix,
Jay Tidmarsh, Larry Alexander, Corey Brettschneider, myself, Eugene Volokh,
Andrea Matwyshyn, Richard Fallon, William Marshall, Howard Wasserman, Matthew
Arnould, Andrew Gavil and Christopher Yoo.
Marty and I
have longstanding disagreements about free speech theory, which we worked on
during a seminar we co-taught a couple of years ago. During that semester, I wrote a paper which
became my contribution to the festschrift, and which will probably end up being
part of a book on free speech theory and obscenity law (so comments are very
welcome). The article is called “Veil
of Ignorance: Tunnel Constructivism in Free Speech Theory.” Here is the abstract:
Modern free speech theory is dominated, in the courts and the academy
alike, by a style of reasoning that posits a few axiomatic purposes of speech
and from these deduces detailed rules of law.
This way of thinking can make the law blind to the actual consequences
of legal rules, and damage both individual liberty and democracy. I develop this claim through a critique of
the work of Martin Redish, who has developed the most sustained and
sophisticated constructivist theory of free speech.
Free speech constructivism is not the only way to understand the First
Amendment. It is a fairly recent development, emerging only in the 1970s. The idea of free speech, on the other hand,
dates back to Milton’s arguments in the 1640s.
This article identifies the pathologies of constructivism, and recovers
an older and more attractive free speech tradition.